PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Saturday, April 8, 2006

Podcasts from the AALS Annual Meeting

The AALS has announced that podcasts of many of the panels at the annual meeting are now on-line

Propertyprof readers may be particuarly interested in listening to the following programs.  Click on the highlighted links to download the podcast:

Joint Program of Sections on Property Law and State and Local Government Law

Eminent Domain and Economic Development

Moderator: Clayton P. Gillette, New York University School of Law
Speakers: Vicki Lynn Been, New York University School of Law
David L. Callies, University of Hawaii William S. Richardson School of Law
Thomas W. Merrill, Columbia University School of Law
Patricia Salkin, Albany Law School Union University

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April 8, 2006 | Permalink | Comments (0) | TrackBack (0)

Property Poetry

Yosemitemeadow Here’s a nice topic for a Saturday afternoon in spring.  Over at verysheik, Oday Imad abd al-Jabbar Salim al-Ayoubi, a Detroit law student, posted Robert Duncan’s poem “Often I am Permitted to Return to a Meadow.”  He was inspired to post the poem by attending property class, which he reports has “thoroughly deromanticize[d] any Wordworthian notions I had about land.”  Ah, take heart.  The tools we learn in property can help people improve their surroundings and their lives.  But it does sounds as thought it’s that time to wheel out the old lecture on images of property in landscape art.  Or at least to think about the Beatles and property law.

Thanks to our friends over at pdphoto.org for providing the public domain image of the Yosemite meadow.

April 8, 2006 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Friday, April 7, 2006

Property Blogs

Over at 3L Epiphany, Ian Best has put together a great taxonomy of law blogs.  The taxonomy includes a useful listing of property law blogs.

Ben Barros

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April 7, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Broken Trust

Brokentrust_2 Continuing on the theme of recent literature on property, I'd like to talk about a great book that has just appeared: Broken Trust: Greed, Mismanagement, and Political Manipulation at America's Largest Trust, by Judge Samuel P. King and Professor Randall Roth.  Of course, I'm coming late to this discussion, because Gerry Beyer and Paul Caron have already praised Broken Trust.

This is a story of epic battle, of the power of charitable trust, of political corruption, and redemption.  In short, of life itself.  And you and your wills students will love it.  Where to begin?  Perhaps with the establishment of the trust by Princess Bernice Pauahi Bishop's will in 1884.  She placed  her property in trust for a school to benefit the children of Hawai‘i: the Kamehameha Schools.  You may have seen discussion of the Kamehameha Schools recently, because the ninth circuit's rehearing en banc a lawsuit challenging their admissions policy.

Property professors will recall that it was this trust's ownership of about one-ninth of the land in Hawaii that led to the passage of the Hawaiian Homes Act in 1969, which led in turn to Hawaii Housing Authority v. Midkiff.  And after the Bishop Trust (though its trustee, Edward Midkiff) lost, they ended up with a huge portfolio--in excess of two billion dollars.  (Little bit of interesting history here--when the trust was established in 1884, its holdings of about 380,000 acres were worth about $470.000.  Talk about a good investment.)  After the trust was forced to sell land, it ended up with lots of cash.  That led in turn to all sorts of problems, as the trustees--who operated under no meaningful oversight--began receiving nearly one million dollars a year in trustee fees and operating the trust as their own fiefdom.

Couple of things that are interesting to property scholars here: the way the case against the trust was pieced together.  There were some lawsuits involving the trust.  Check out this self-dealing: one trustee represented a golf club near Washington, D.C., when it purchased property FROM THE TRUST.  That impropriety might have remained unknown, except that the transaction ended up in litigation.  In another case, trustees invested the trusts (as well as their own money) in an oil exploration project, without disclosing their investments to other trustees.  Again, litigation led to the disclosure of that.

Then there's the story of the way that increasing pressure, from members of community (including University of Hawaii Law Professor Randall Roth) who investigated and reported on the abuses led to reform.  They worked in conjunction with members of the community to bring down the trustees.  The attorney general became involved, so did the IRS.  It's a story about arrogance and self-dealing and an optimistic story of integrity, too--on the part of teachers, who were subject to dismissal, students, and other members of the community.  Those brave souls brought about important reforms of the trust; Professor Roth in particular is my hero, for having the courage to take on the trust, despite the risk of political and other consequences.

It's absurdly hard to write a book about trusts that is exciting, but Randall Roth and Judge King have done just that.  And some of your favorite wills scholars--Edward Halbach and John Langbein-- make appearances, too.  I  highly recommend it to you and to your students; it's well worth assigning to your wills class.  And I hope you'll add it to your summer reading list.  You'll enjoy it--trust me on this one.

April 7, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, April 6, 2006

Serkin on Levels of Government and the Takings Clause

Christopher Serkin (Brooklyn Law School) has posted Big Differences For Small Governments: Local Governments and the Takings Clause on SSRN.  Here's the abstract:

This Article argues that the Fifth Amendment’s Takings Clause should apply differently to local governments than to higher levels of government. The Takings Clause is at the heart an increasingly contentious property rights debate. On one side are property-rights advocates who argue for expanding government liability for takings of private property. On the other are proponents of deference to government regulation. More often than not, the terms of the debate have focused on a traditional economic account of the Takings Clause. Property-rights advocates argue that expanding the compensation requirement is necessary to force the government to internalize the costs of its actions, ensuring that regulations will occur only where benefits exceed costs. Others, however, argue that governments respond to political and not monetary costs so that a compensation requirement will not influence government decision-making in any predictable way. Public choice theorists, in particular, argue that regulations are more likely to result from special interest group rent-seeking, while costs are passed on to taxpayers generally. Where the public choice theory critique applies, compensation will not serve as a meaningful check on regulatory incentives.

This Article argues that the strength of the public choice critique rises and falls with the level of government. Local governments are largely majoritarian and specifically responsive to local homeowners. Because local governments also receive most of their revenue from local property taxes, forcing local governments to compensate under the Takings Clause will, in fact, force them to internalize the costs of their actions. However, local governments’ regulatory incentives are subject to their own specific distortions. Local governments are risk averse so that the prospect of a large takings judgment may over-deter them from acting. Local government regulations also tend to impose significant positive and negative externalities on neighboring communities. This Article therefore proposes (1) ratcheting down compensation for takings by local governments to account for their risk aversion, and (2) creating a form of inter-governmental liability to allow local governments to capture the positive externalities of their actions and force them to pay for the negative externalities.

Ben Barros

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April 6, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Bourgeois Nightmares: Suburbia, 1870-1930

Fogelsoncover_1One of the things that I'm hoping to do a little bit during my guest stint here is to comment on recent property scholarship, particularly monographs.  I've already  commented some on Lindsay Robertson's important book on Johnson v. McIntosh, Conquest by Law.

I urge you to check out Robert Fogelson's Bourgeois Nightmares: Suburbia, 1870-1930, which has just appeared from Yale University Press.  It's already scooped up some good reviews--and particularly look for Laura Underkuffer's exceptionally thoughtful review coming to the Law and History Review.

Property professors will be particularly interested in this because Fogelson uses restrictive covenants as a gauge of what Americans wanted.  What a brilliant way to read those nearly ubiquitious sources.  Of course, racially restrictive covenants have a lot to say about Americans' attitudes towards property and neighbors.  Fogelson makes ample use of those sources; and he uncovers that it wasn't just African Americans who were unwelcome.  Other racial and religious groups were unwelcome in some housing developments--Jews, Catholics, Greeks, Italians, Irish, Asians.  But there's more the in covenants, like the size of houses, the absence of stores, the size of lots.  In short, how people will live.

This one is worth a read this summer.  And I think some of your students will like this one, too.

Alfred L. Brophy

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April 6, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 5, 2006

Federalist Society Intellectual Property Conference

The Federalist Society is organizing a conference on Intellectual Property:  Back to Basics in Washington D.C. on May 17:

10:00 a.m. - 11:45 a.m.
Panel One: By Any Other Name: Intellectual Property as "Property"

Is intellectual property really "property?" The property label has become controversial in modern scholarship and policy debates. Some contend that copyright and patent law should be about innovation policy, not property rights. They view patents and copyrights as a necessary evil provided to encourage progress in the arts and sciences. In this view, there is no inherent justification for the rights of intellectual property owners; they are wholly contingent on the social good they produce. Others view the concept of property far more expansively, and they see intellectual property as a key component of individual liberty, justified by ownership of one's own person and labor. These opposing views lead to very different understandings of intellectual property.

This panel will focus on the philosophical and practical implications of intellectual property as property. Is intellectual property best treated as cultural and innovation policy or as a private property right? Are intellectual property rights morally justified by the owner's right to life and liberty? Does intellectual property only impose on other liberties, or does it in fact support and defend them? How can property doctrines and policies strike a balance between owners' rights and the public interest? This panel will present several differing perspectives on these questions, examining how they apply to patents, copyrights, trademarks, and other forms of intellectual property.

12:00 noon - 1:45 p.m.
Panel Two: Modern Intellectual Property Rights: Unprecedented Growth or Unprecedented Erosion?

Are intellectual property rights stronger than ever or are they under unprecedented attack? Conventional wisdom is of two minds. Intellectual property owners contend that intellectual property rights are threatened like never before. On the other hand, critics believe that intellectual property rights have grown to an unprecedented and unhealthy degree. Most agree that intellectual property rights should encompass a balance between private rights and the public interest, but there are starkly different views as to whether the balance is tipping the right way. For example, some object to the use of antitrust law to overcome intellectual property rights held by large corporations, while others say it has not gone far enough. Many assert that governments should use compulsory licensing of patents and other intellectual property rights to correct perceived market failures. Some open source and free software advocates contend that governments should favor open source software over market-based models of software development. How should policymakers balance intellectual property rights with market considerations? With the public good? Are we striking the right balance or are we failing?

Confirmed Participants to Date Include:

Prof. Wendy Gordon, Boston University School of Law
Prof. F. Scott Keiff, Associate Professor, Washington University School of Law and National Fellow, Hoover Institution, Stanford University
Prof. Adam Mossoff, Michigan State University School of Law
Prof. Mark Schultz, Southern Illinois University School of Law
Ms. Gigi B. Sohn, President and Co-Founder, Public Knowledge

Ben Barros

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April 5, 2006 in Conferences, Intellectual Property | Permalink | Comments (0) | TrackBack (0)

Maybe Vulcan Jurisprudence Really Is A Cultural Meme

On the subject of Al's most recent post and another post from last fall, Legal Affairs has a review of a book on Star Trek jurisprudence.  Hat tip:  Ilya Somin at the VC.

Ben Barros

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April 5, 2006 in Teaching | Permalink | Comments (0) | TrackBack (0)

Vulcan Jurisprudence

Velasquezforge File this one under: a new phrase I learned in class this week.

First, I am not now, nor have I ever been, a fan of Star Trek. Somewhere in my very distant past I recall seeing an episode where a creature was trying to protect its young or its nest or something from miners and, as I recall, it was blasted into oblivion.  Perhaps that was social commentary; not sure, but that did it for me.  (And maybe I’m wrong about the plot–-the important point here is not the plot of the show but how I interpreted and remember it.)  Nor have I spent much time with the various work on the jurisprudence of Star Trek (or here) and what Legal Affairs terms “Enterprising Scholarship.” (Ha, ha). 

So when we were talking today on Monday about zoning and Ryan Markham wondered about the appropriateness of extending the police power into something that looks like “Vulcan Jurisprudence,” I was puzzled.  Now, I’m familiar with Judge Janice Rogers Brown's “Whiter Shade of Pale” speech, which discusses what might be termed "Whiter Shade of Pale Jurisprudence." I’m working on a post I’m going to call “Aloha Jurisprudence.”  And I might do something on "Twilight Zone Jurisprudence" at some point.  But "Vulcan Jurisprudence" was a new one to me.

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April 5, 2006 in Property Theory | Permalink | Comments (3) | TrackBack (0)

Somin and Adler on the Green Costs of Kelo

Ilya Somin (George Mason University - School of Law) and Jonathan Adler (Case Western Reserve University School of Law) have posted The Green Costs of Kelo: Economic Development Takings and Environmental Protection  on SSRN.  Here's the abstract:

This Article is the first academic paper to systematically consider the environmental impact of the Supreme Court’s decision in Kelo v. City of New London and of economic development condemnations more generally. Kelo upheld “economic development” takings - condemnations that transfer property from one private owner to another solely on the ground that doing so might improve the local economy or increase tax revenue. The decision stands in sharp contrast to the Michigan Supreme Court’s ruling in County of Wayne v. Hathcock, which forbade the use of eminent domain for economic development.

Part I briefly explains the rationales of the Kelo and Hathcock decisions and shows why a Hathcock-like ban on economic development takings is highly unlikely to impede environmental regulation or the use of eminent domain for legitimate conservation purposes. This doctrinal point is buttressed by empirical evidence indicating that none of the nine states with judicial bans on economic development takings have ever used such a ban to strike down the use of eminent domain for environmental or conservation purposes. Part II shows that economic development takings actually threaten environmental harm. Allowing the use of eminent domain for economic development poses a particular threat to private conservation lands and open space. Because land owned by conservation nonprofits produces few economic benefits and does not contribute to tax revenue, it is likely to be targeted by developers and local governments that use eminent domain to advance their development interests. Economic development takings can also damage the environment by promoting environmentally harmful development, undermining property rights, and furthering dubious development plans that sap community wealth and reduce resources available for environmental protection. In many situations, economic development takings end up giving us the worst of both worlds: they cause environmental harm and reduce economic growth by transferring land to inefficient development projects.

Somin also has a post on the article over at the VC.  If you have a comment on the article, please leave it at the VC, rather than here.

View all takings posts

Ben Barros

April 5, 2006 in Recent Scholarship, Takings | Permalink | TrackBack (0)

Tuesday, April 4, 2006

Bernard Siegen (1924-2006)

Thanks to How Appealing, I learned last week of Bernard Siegen's death.  Siegen was an emeritus professor at the University San Diego.  His obituary in the LA Times is here, which has a little more about him as a person than the one in the New York Times.  Both are great reading.  Here's a taste of the LA Times editorial:

"This was an unlikely firebrand," said Richard A. Epstein, a University of Chicago law professor. "What made Bernie such an important figure was that his legal instincts were very good."

Siegan's strongly held conviction — that economic freedoms deserved the same protections as the freedoms of speech, religion and the press — went "very much against conventional wisdom in the 1970s," said Maimon Schwarzschild, a fellow law professor at the University of San Diego.

It also made Siegan, a Libertarian, one of the key legal and constitutional thinkers in the movement of ideas that became the Reagan Revolution, according to Schwarzschild. . . .

A 1980 book by Siegan, "Economic Liberties and the Constitution," was "the opening salvo" in the revival of the property-rights movement, said Epstein . . . .

David Bernstein has posted about Professor Siegen's impact over at Volokh; the obituary in the National Review On-Line is similar.  Propertyprof readers may be familiar with his Economic Liberties and the Constitution (University of Chicago, 1980).  I'm most familiar with Property Rights: From Magna Carta to the Fourteenth Amendment (Transaction 2001).  You may also remember that he was nominated to the United States Court of Appeals by President Reagan.

Alfred L. Brophy

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April 4, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 2, 2006

Antiquities Property and Law

Machupicchu There have been a few articles recently on antiquities.  The Washington Post has been following the dispute over antiquities taken by Yale University Professor Hiram Bingham from Peru in the early part of the twentieth century.  The short version of this long story is that Peru wants the art back from Yale University’s Peabody Museum, which launched a major exhibit on them recently. The story goes back to 1911 when Hiram Bingham first visited Machu Picchu:

Bingham, an obscure 35-year-old adjunct professor until that July morning in 1911, was at the beginning of a great public career that would make Indiana Jones jealous: explorer, World War I aviator, author, governor of Connecticut, U.S. senator. . . . .

He may have cut a Hollywood-perfect image as an explorer, with exploits seemingly ripped from a script, but he was no tomb raider. The irony at the bottom of this ruckus is that 95 years ago, Bingham, Yale, National Geographic and Peru appeared to recognize the inherently unequal and morally fraught relationship between bankrolled explorers and bankrupt peoples.

They tried to do something about it: Laws were passed, words were inked, in hopes that 95 years later there wouldn't be a dispute over who owned what. That didn't work out so well.

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April 2, 2006 | Permalink | Comments (2) | TrackBack (1)